ByMichael Tarm, Associated PressMay 10, 2014

Chicago — By letting the billionaire creator of Beanie Babies off with no prison time for hiding at least $25 million from U.S. tax authorities in Swiss banks, a judge may have sent the message that there's a different standard for the wealthy, federal prosecutors suggested in an appeal Friday asking for a do-over of Ty Warner's sentencing.

The sustained tax evasion the 69-year-old pleaded guilty to called for at least some stint behind bars, the 55-page filing with the U.S. 7th Circuit Court of Appeals said.

Letting Warner's sentence of probation stand, it argues, "creates improper disparities between rich and poor defendants." Not imprisoning Warner for the millions he concealed from the IRS will also make it difficult for prosecutors to justify prison sentences for those who hide far less.

"In the future, counsel for offshore-evasion defendants, and white-collar defendants in general, will certainly argue that since Warner received probation, their clients should as well," the filing says.

In addition to two years' probation, the sentencing judge ordered Warner to do 500 hours of community service. Earlier, Warner agreed to pay $27 million in back taxes and interest, and a civil penalty of more than $53 million

Warner's spokesman, Eric Herman, defended the sentence Friday.

"Unfortunately, the government is spending resources to challenge a well-reasoned and careful sentence issued by a well-respected judge," the statement said.

At Warner's January sentencing, prosecutors had asked that he spend at least a year behind bars.

But instead, Judge Charles Kocoras heaped praise on Warner for his charitable giving, declaring society was better served by letting the suburban Chicago businessman go free. Warner said he had given nearly $140 million to charity in his lifetime.

"Mr. Warner's private acts of kindness, generosity, and benevolence are overwhelming," Kocoras told January's hearing. "Never have I had a defendant in any case ... demonstrate the level of humanity and concern for the welfare of others as has Mr. Warner."

Prosecutors pooh-poohed that reasoning.

With a net worth prosecutors said was around $1.7 billion, the value of Warner's charitable giving as they calculated it was less than 2 percent of his wealth. And some billionaires, they note in the appeal, have given away half of their wealth.

"Warner is no Robin Hood," the filing says. "His past charitable contributions were not so extraordinary, in light of his wealth, that they qualify as 'a get-out-of-jail card.'"

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